Transgender woman’s case goes to Supreme Court

‘Ella’ seeks to find sex offender registry unconstitutional
By: 
Kevin Murphy
Correspondent

A transgendered Shawano woman wants the Wisconsin Supreme Court to find the state’s juvenile sex offender registry unconstitutional as it allegedly violates her right to free expression and constitutes cruel and unusual punishment.

Ella is a pseudonym used by a 20-year transgendered woman who was convicted as a boy, identified only as C.G., in a 2016 sexual assault of a boy. Ella is challenging the state law that requires the Wisconsin Department of Corrections to maintain a registry of sex offenders by name and alias. The statute prohibits the offender from changing his or her name or identifying him or herself by a name not recognized by the DOC.

After serving a sentence of detention in juvenile facilities, Ella asked Shawano County Circuit Judge William Kussel Jr. to stay the order to register as a juvenile sex offender. Kussel denied the request in 2017, and earlier this year, after several extensions, a state appeals court upheld Kussel.

In affirming Kussel, the District III Court of Appeals concluded that the sex offender registry law prohibiting Ella’s changing her legal name doesn’t restrict her First Amendment right to free expression. Even if it did, it is permissible because the restriction is gender or content neutral.

The court also found that the registry law is constitutional because “it furthers an important government interest in an incidentally restrictive manner,” Judge Mark Seidl wrote.

The government’s interest is law enforcement’s effective use of the registry and that outweighs any harm to Ella caused by her requiring to register her legal name, according to the appeals opinion.

The appeals court also rejected Ella’s claim that having her legal name on the registry not matching the gender she presents “outs” her as a male without her consent each time she has to supply her legal name. That constitutes cruel and unusual punishment in violation of the Eighth Amendment, she had argued.

In a 2000 ruling, the state Supreme Court found that the sex offender registration requirement doesn’t constitute punishment because it doesn’t intend to punish sex offenders but protects the public and assists police.

The appeals court said it is bound by the higher court’s ruling and requires it to conclude that the registry isn’t a form of cruel and unusual punishment.

The state Supreme Court announced May 7 that it was accepting the case but has not set the case for oral argument and gave Ella’s attorneys until May 27 to file the first brief in the case.

Ella’s attorneys and attorneys for Juvenile Law Center, National Center for Lesbian Rights, and Trans Law Help Wisconsin did not return calls for comment.

Ella’s conviction stemmed from when she was 15 and, with the help of a girl, held down a 15-year-old boy with disabilities so Ella could perform oral sex on him. The boy was 5 feet, 10 inches and 110 pounds; Ella was 6 feet, 5 inches and 345 pounds.

The boy’s parents learned of the offense when they searched his cellphone and found Facebook messages of the incident.

Ella was sentenced from six to 10 months juvenile detention and required that she be listed on the state’s sex offender registry. After a second unprovoked attack, which required hospital treatment, Ellla was transferred from Lincoln Hills to Mendota Juvenile Treatment Center partly because she was transitioning as a youth from a male to a female identity.

After being released from Mendota, Ella requested Kussel to stay her registration on the sex offender list. A psychologist, specializing in sex offender treatment, said that the public wouldn’t be protected by Ella’s registration as a sex offender but there was a possibility that registration would harm her. Kussel denied the request, and the appeal began.